Category Archives: National Journal

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Judgment and Character Are Paramount

by Stuart Taylor, Jr.

National Journal

"Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."

So said British statesman Edmund Burke in his famous 1774 speech to the electors of Bristol. Similarly, James Madison wrote in Federalist 57 that voters should choose the candidates "who possess most wisdom to discern, and most virtue to pursue, the common good of the society."

Wise counsel, albeit forlorn in today’s campaign world in which most people-especially primary voters-back the candidates who are most shameless in sacrificing their judgment to the voters’ opinions.

Burke and Madison might well have approved the judgment-focused questions that pro-Obama journalists have so furiously excoriated moderators Charles Gibson and George Stephanopoulos, of ABC News, for asking at the April 16 debate between Barack Obama and Hillary Rodham Clinton. The Washington Post‘s Tom Shales accused the two of "shoddy, despicable performances." The New Yorker‘s Hendrik Hertzberg said that they had committed "something akin to a federal crime." The New York Times‘s David Carr called it a "disgusting spectacle."

Such commentators were especially livid that for much of the first half of the two-hour debate the moderators bored in on Obama’s gaffe about "bitter" laid-off small-towners who "cling to guns or religion or antipathy to people who aren’t like them"; questioned his closeness to the Rev. Jeremiah Wright through many years of Wright’s anti-American, white-bashing rants; and brought up his more glancing connection to William Ayers, a University of Illinois professor who was a Weather Underground leader and (by his own admission) bomber almost 40 years ago.

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Reforming the State Secrets Privilege

by Stuart Taylor, Jr.

National Journal

Among the legal issues over which the Bush administration and its congressional critics are stalemated in the war on terrorism is the so-called state secrets privilege. The case of one Khaled el-Masri illustrates the need for carefully balanced congressional reforms during the next administration to mitigate the privilege’s harsh effects on deserving plaintiffs-and on the national image.

In a petition filed on April 9 with the Inter-American Commission on Human Rights, this apparently innocent German citizen of Lebanese extraction described a harrowing five-month ordeal at the hands of Macedonian and then U.S. agents who mistook him for a Qaeda operative. While el-Masri was on a vacation trip, according to the petition (drafted by the American Civil Liberties Union), Macedonian agents abducted, isolated, and harshly interrogated him for 23 days, then brutally beat him while handing him over to a CIA "rendition team." The CIA agents in turn allegedly beat, stripped, and drugged el-Masri and flew him to a secret prison in Afghanistan, where he was held incommunicado for more than four months, harshly interrogated, and treated inhumanely. Finally he was blindfolded again, flown to Albania, and released in the dead of night. El-Masri’s allegations draw plausibility from the government’s failure to deny his factual claims.

The second apparent victimization of el-Masri came when the government denied him compensation or apology for this grotesque mistreatment. It chose instead to hide behind the state secrets privilege, persuading the courts to dismiss el-Masri’s lawsuit against former CIA Director George Tenet and other officials because it would require the agency to admit or deny the existence of a clandestine CIA activity, including highly classified details such as the persons, companies, or governments involved. The Supreme Court declined in October to take up el-Masri’s last appeal.

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Obama’s Wife and Their Spiritual Adviser

by Stuart Taylor, Jr.

National Journal

Weeks of brooding over the Rev. Jeremiah Wright and Michelle Obama eruptions have severely shaken the hope I expressed in January: "If Barack Obama can show he is tough enough and pragmatic enough to win the presidency and serve with distinction, it would be the best thing that could happen to America and the world."

What should we learn about Obama’s judgment and fortitude from the fact that he sat passively in the pews for 20 years and gave money and took his children while Wright, his friend and "spiritual adviser," spewed far-left, America-hating, white-bashing, conspiracy-theorizing, loony, "God damn America" vitriol from the pulpit?

This concern is not entirely dispelled by Obama’s shifting explanations, including his mostly admirable March 18 speech about Wright and the issue of race.

Also disturbing is the bleak picture of America painted by Obama’s closest adviser, his wife, Michelle, in highly newsworthy comments, most of which the media have chosen to ignore.

Her stunning February 18 statement that "for the first time in my adult lifetime, I am really proud of my country" did get some attention, but just two mentions buried in The Washington Post and three buried in the news columns of The New York Times. The news columns of both papers, and almost all others, have ignored Michelle Obama’s assertions that this country is "just downright mean" and "guided by fear"; that "our souls are broken"; and that most Americans’ lives have "gotten progressively worse since I was a little girl."

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Supremes Whack World Court – and Bush

by Stuart Taylor, Jr.

National Journal

It’s not every case in which the Bush administration is aligned with the World Court, human-rights groups, the American Bar Association, the European Union, other death-penalty opponents, and a vicious murderer now sitting on death row against Bush’s home state of Texas and tough-on-crime groups.

Nor is it every case in which Bush-appointed Chief Justice John Roberts and his four most conservative colleagues (plus liberal John Paul Stevens) rebuff the president for making an excessive claim of presidential power.

That’s what happened on March 25, in Medellin v. Texas, a complex but fascinating case that has become a global cause celebre. The Supreme Court ruled 6-3 that neither the World Court nor the president could require Texas courts to give the murderer, a Mexican national named Jose Ernesto Medellin, a new hearing on whether he was denied a fair trial by the state’s violation of his right under a multilateral consular treaty to seek help from the Mexican consulate after his arrest. Texas courts have refused because Medellin’s attorney did not raise the state’s violation of the Vienna Convention on Consular Relations in his trial or initial appeal.

The Court issued two important rulings: 1) U.S. courts may not use vague treaty provisions to override state or federal laws without explicit authorization from Congress, a point on which Bush agreed; and 2) The president lacks the sweeping and unprecedented power that he claimed unilaterally to require judicial enforcement of such vague treaty provisions.

The Court was right on both points, in my view. But the decision, widely denounced by internationalists, does carry heavy costs. As Roberts acknowledged, it may hurt relations with foreign governments, may be seen as undermining the nation’s "commitment to international law," and may make it harder for Americans arrested abroad to get access to U.S. consular officials.

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Executing 9/11 Murderers Would Backfire

by Stuart Taylor, Jr.

National Journal

The six Guantanamo prisoners charged with participating in the 9/11 mass murders are "poster children for the death penalty," Attorney General Michael Mukasey told students in response to a question after a March 14 speech at the London School of Economics. True.

But Mukasey added a postscript: "In a way, I kind of hope from a personal standpoint — and I can say this because the military commissions will be run by the Department of Defense, not by the Justice Department, although we are participating with them … I kind of hope they don’t get it, because many of them want to be martyrs."

I kind of hope they don’t get it. Coming from the chief law enforcement officer of an administration that avidly supports the death penalty, especially for mass-murdering jihadists, this was a stunning assertion.

It was also a wise one. And I hope that it was not just an inadvertent slip into candor and common sense — a "gaffe," in Washington parlance. I hope that it was a strategically timed move to get the Bush administration to think things through, for once, and to slow down the jihadist-execution train before it gets too far down the track.

(Mukasey can be forgiven for adding an inartful analogy about "the masochist [who] says ‘Hit me’ and the sadist [who] says ‘No.’ ")

Of course, as Mukasey suggested, it’s hard to imagine a more deserving candidate for the death penalty than Khalid Shaikh Mohammed, who has admitted masterminding the 9/11 attacks and is proud of it.

But giving the terrorist murderers what they deserve makes no sense if the result would be to set back our war against jihadism. Aside from satisfying the jihadists’ mad lust for martyrdom, executions would also hurt us badly in the broader war by further inflaming anger at America across Western Europe and the Islamic world.

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Mukasey Feeds the Prison Binge

by Stuart Taylor, Jr.

National Journal

Attorney General Michael Mukasey has in most ways been a vast improvement over his predecessor, Alberto Gonzales. But at a time when an unprecedented one in 100 American adults is behind bars — including one in nine black men between the ages of 20 and 34 — he has so far been a big disappointment to those hoping for a change in the lock-’em-up-and-throw-away-the-key policies on nonviolent drug offenders.

Mukasey has resorted to counterfactual fear-mongering in calling for Congress to roll back the U.S. Sentencing Commission’s wise, unanimous decision last year to reduce retroactively the especially cruel and counterproductive prison terms provided by its sentencing guidelines for crack cocaine. The commission’s action has made 19,500 federal prisoners serving crack sentences — more than 80 percent of whom are black — eligible at some point to seek sentence reductions averaging just over two years.

The commission’s decision, which became fully effective on March 3 over Mukasey’s objection, was a step toward slowing the sixfold increase since 1970 in the number of people behind bars in the United States, from 330,000 to 2.3 million, more than in any other nation. The impact of this prison binge on hundreds of thousands of young black drug offenders with (in most cases) no record of violence has been especially harsh. The seven-member commission has also urged Congress to reform the savagely severe federal mandatory minimum sentencing laws for crack.

But Mukasey objected to the retro-active sentence reductions, asserting in a February 25 speech to the Fraternal Order of Police (and on other occasions) that these 19,500 crack offenders "are some of the most serious and violent offenders in the federal system."

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Opening Argument – What to Do About Waterboarding

by Stuart Taylor, Jr.

National Journal

A lot of Democrats, editorialists, and others have said not only that waterboarding is torture (as Sen. John McCain has) but also that the CIA’s use of that practice on three Qaeda leaders in 2002 and 2003 obviously violated a 1994 law making torture a crime. From that premise, some have said or implied that:

• The administration lawyers who have come to the opposite conclusion — now including Attorney General Michael Mukasey, as well as those who approved the use of waterboarding in advance — were acting in bad faith.

• These lawyers (or at least some of them) should be subject to professional discipline both by the Justice Department’s Office of Professional Responsibility, which is investigating the matter, and by state disciplinary authorities with power to disbar unethical lawyers.

Some have also called for criminal prosecution of the CIA interrogators who used harsh techniques, including waterboarding, and/or of the higher-level officials who approved the techniques, in reliance on Justice Department legal opinions.

It’s hard to see where the logic of the more passionate critics stops, short of suggesting what few have so far said overtly: that President Bush, former CIA Director George Tenet, and other top officials and former officials should be prosecuted as war criminals, presumably by the next administration.

This is a dangerous line of argument based on a flawed legal premise.

It is dangerous because the last thing this bitterly divided country needs is years — indeed, decades — of recriminations over whether the Bush administration’s war on terrorism has been a criminal enterprise whose leaders belong in prison. We should focus on amending the law to prevent future abuse of waterboarding and other repugnant techniques, not on hounding those responsible for past interrogations of questionable legality.

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Opening Argument – Obama Logic Versus Racial Preferences

by Stuart Taylor, Jr.

National Journal

"I think that my daughters should probably be treated by any admissions officer as folks who are pretty advantaged, and I think that there’s nothing wrong with us taking that into account as we consider admissions policies at universities. I think that we should take into account white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed." — Barack Obama, May 13, 2007

This Obama response to a question by ABC’s George Stephanopoulos about whether the children of two well-off Harvard law graduates should "get affirmative action" (meaning racial preferences) has potentially radical implications for a Democratic presidential contender.

Although Obama has often embraced racial preferences, the above-quoted statements — as well as his inspirational rhetoric about getting away from racial categorizing — are hard to reconcile either with the regime of racial preferences that now pervades this country or with Democratic orthodoxy on the subject.

Obama seemed to imply that "advantaged" African-Americans should not receive affirmative-action preferences — at least, not at the expense of less advantaged Asian-Americans or whites — in college admissions, or (one might extrapolate) other walks of life.

But most recipients of racial preferences are relatively advantaged. According to the most comprehensive survey of the relevant data, although white students are wealthier on average, 86 percent of the black students (and 98 percent of whites) enrolled in 28 selective colleges came from middle- or upper-class backgrounds. (The numbers come from a 1998 book, The Shape of the River, by William G. Bowen and Derek Bok, both ardent champions of racial preferences.)

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Opening Argument – The University Has No Clothes

by Stuart Taylor, Jr.

National Journal

When a mentally deluded stripper accused three Duke University lacrosse players of a brutal gang rape at a March 2006 off-campus team party during spring break, dozens of activist Duke professors were not content merely to give great credence to the rape charge, even as evidence of its probable fraudulence poured into the public record. They also treated the lacrosse players as pariahs for having hired strippers at all. So, too, did Duke President Richard Brodhead, Board Chairman Robert Steel, other campus administrators, many in the media, and others.

Never mind that hiring strippers violated no law or university rule. Never mind that nobody had made a fuss about the 20-plus stripper parties that other Duke athletic teams, fraternities, and sororities held that year. Brodhead and other officials and professors continued to express horror long after the supposedly "privileged" lacrosse players had abjectly apologized. To underscore its horror, the university adopted a new rule: "Strippers may not be invited or paid to perform at events sponsored by individual students, residential living groups, or cohesive units."

So, some might be surprised to learn that on this year’s Super Bowl Sunday, Duke University played host to a group of strippers, prostitutes, phone-sex operators, and others in a "Sex Workers Art Show" to display their "creativity and genius." The university spent $3,500 from student fees and various programs to pay the performers and cover expenses.

One account of the February 3 show in the on-campus Reynolds Theater-from which I have redacted the more repulsive particulars-was posted on the Internet by Jay Schalin, of the conservative-leaning John William Pope Center for Higher Education Policy.

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Opening Argument – Perils of the Race and Gender Cards

by Stuart Taylor, Jr.

National Journal

Playing the race card is not really Barack Obama’s style. Although happy to use his racial identity as an asset, he seeks to transcend it by getting beyond obsessing about racial grievances. This is not easy in a party that has long wallowed in the politics of group grievance. It is especially difficult when running against a woman who has so assiduously used the gender card while profiting from her own victimization at the hands of the same unfaithful husband who now joins her in tag-team distortions of Obama’s record.

Gloria Steinem took Hillary Rodham Clinton’s I-am-woman-vote-for-me approach to the limit in a New York Times op-ed by suggesting that it would be better to elect a white woman than a black man because women got the franchise 50 years later and have "no masculinity to prove."

So perhaps Obama should be forgiven for piling on a bit after other black leaders implausibly accused Clinton of showing disrespect for the Rev. Martin Luther King Jr. when she pointed out that King needed President Johnson to push civil-rights laws through Congress. Obama was ill-advised to call Clinton’s statement "ill-advised" and "unfortunate." But would forbearance have cost him black votes?

"All the habits of verbal thuggery that have long been used against critics of affirmative action [and of] radical feminism," David Brooks observed in his New York Times column, "are now being turned inward by the Democratic front-runners."

Is it too much to hope that this embarrassing identity-politics brawl proves to be a learning experience for liberals about the dangers of reflexively attributing racist, sexist, and other bigoted motives to people who disagree with or displease them?